Ex parte Perry, PD–1067–15

• Citation: 483 S.W.3d 884
• Decision Date: 24 February 2016
• Docket Number: NO. PD–1067–15,PD–1067–15
• Parties: Ex parte James Richard "Rick" Perry, Appellant
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

483 S.W.3d 884

Ex parte James Richard "Rick" Perry, Appellant

NO. PD–1067–15

Court of Criminal Appeals of Texas.

Delivered: February 24, 2016

Revised Dissenting Opinion of Judge Myers March 2, 2016

David L. Botsford, Attorney at Law, Thomas R. Phillips, Baker Botts LLP, Austin, TX, Anthony Buzbee, The Buzbee Law Firm, Houston, TX, for Appellant.

Lisa McMinn, State Prosecuting Attorney, Austin, TX, for the State.

Keller, P.J., delivered the opinion of the Court as to Parts I, II.B.3, III and IV in which Keasler, Hervey, Alcala, Yearyand Newell, JJ., joined and announced the judgment of the Court and filed an opinion as to the remainder of Part II in which Alcalaand Yeary, JJ., joined.

This case arises from a governor's threat to exercise a veto and his ultimate exercise of that veto. Whether the State can prosecute the governor for these acts depends upon (1) whether prosecuting the exercise of a veto under the "abuse of official capacity" statute is a violation of the Separation of Powers provision of the Texas Constitution, and (2) whether the relevant portion of the "coercion of a public servant" statute, being used to prosecute the threat to exercise a veto, is facially unconstitutional in violation of the First Amendment. Before reaching the first question, we must also decide whether the governor can raise his separation of powers complaint as an as-applied challenge in a pretrial habeas application followed by an interlocutory appeal. Answering these three questions in the affirmative, we reverse the judgment of the court of appeals with respect to count one, affirm the judgment of the court of appeals with respect to count two, and order the dismissal of the indictment.

I. Background

A. The Indictment and Pretrial Proceedings

The charges against the appellant, James Richard "Rick" Perry, arise from actions taken while he was governor of the State of Texas. A Travis County grand jury returned a two-count indictment against him. Count I alleged the offense of "abuse of official capacity,"¹ and Count II alleged the offense of "coercion of a public servant."² In a nutshell, Count I alleged that Governor Perry³ abused his official capacity by misusing funds appropriated to the Public Integrity Unit of the Travis County District Attorney's Office, and Count II alleged that he coerced a public servant—District Attorney Rosemary Lehmberg—by threatening to veto the funds for that unit if she did not resign.⁴

The offense of abuse of official capacity is committed when a public servant, with intent to harm another, intentionally or knowingly misuses government property that has come into his custody or possession by virtue of his office or employment.⁵ "Public servant" includes an officer of government,⁶ such as a governor. Count I alleged the following:

On or about June 14, 2013, in the County of Travis, Texas, James Richard "Rick" Perry, with intent to harm another, to-wit, Rosemary Lehmberg and the Public Integrity Unit of the Travis County District Attorney's Office, intentionally or knowingly misused government property by dealing with such property contrary to an agreement under which defendant held such property or contrary to the oath of office he took as a public servant, such government property being monies having a value of in excess of $200,000 which were approved and authorized by the Legislature of the State of Texas to fund the continued operation of the Public Integrity Unit of the Travis County District Attorney's Office, and which had come into defendant's custody or possession by virtue of the defendant's office as a public servant, namely, Governor of the State of Texas.

The offense of coercion of a public servant is committed when a person, by means of coercion, influences or attempts to influence a public servant in the exercise of a specific performance of his official duty.⁷

The Penal Code provides several methods of engaging in coercion, but the definition of coercion at issue here is "a threat, however communicated ... to take or withhold action as a public servant."⁸ The coercion statute also provides an exception for certain official conduct.⁹ The charging instrument must negate this exception, and the State must prove beyond a reasonable doubt that the exception does not apply.¹⁰ Count II of the indictment alleged:

Beginning on or about June 10, 2013, and continuing through June 14, 2013, in the County of Travis, Texas, by means of coercion, to-wit: threatening to veto legislation that had been approved and authorized by the Legislature of the State of Texas to provide funding for the continued operation of the Public Integrity Unit of the Travis County District Attorney's Office unless Travis County District Attorney Rosemary Lehmberg resigned from her official position as elected District Attorney, James Richard "Rick" Perry, intentionally or knowingly influenced or attempted to influence Rosemary Lehmberg, a public servant, namely, the elected District Attorney for Travis County, Texas, in the specific performance of her official duty, to-wit: the duty to continue to carry out her responsibilities as the elected District Attorney for the County of Travis, Texas through the completion of her elected term of office, and the defendant and Rosemary Lehmberg were not members of the same governing body of a governmental entity, such offense having been committed by defendant, a public servant, while acting in an official capacity as a public servant.

Governor Perry filed a motion to quash and dismiss the indictment and a pretrial application for a writ of habeas corpus. He claimed that the statutes underlying both counts were unconstitutional as applied to the charges against him. Included in his claims were allegations that the abuse-of-official-capacity statute was unconstitutional as applied because it infringed upon a governor's absolute right under the Texas Constitution to veto items of appropriation and because it violated the Texas Constitution's Separation of Powers clause. He also attacked Count II on the basis that the relevant portion of the coercion statute was facially unconstitutional because it was overbroad in violation of the First Amendment. The motion to quash also claimed that Count II failed to negate the exception found in § 36.03(c).

The trial court denied Governor Perry's motion to quash, but the court's order contained some qualifications. The order expressed the court's concern that Count I failed to specify what act constituted the misuse of government property: "[I]f the act of vetoing the appropriations bill funding the Public Integrity Unit is the act on which the State intends to rely ... the indictment should say so. On the other hand, if the veto is not the act of alleged misuse, then [Governor Perry] ... does not have sufficient notice of what facts support the State's claim of misuse." The trial court did not at that time act on that concern because the motion to quash had not challenged the indictment's lack of specificity. The order did say that the filing of a motion to quash challenging the sufficiency of the indictment would be permitted and that the State would be "permitted (and encouraged) to amend the indictment to plead Count I with more specificity, as suggested."

As to Count II, the trial court agreed with Governor Perry that the indictment failed to properly negate the exception found in § 36.03(c). The trial court concluded that the language "the defendant and Rosemary Lehmberg were not members of the same governing body of a governmental entity," which the State included in order to negate the exception, neither expressly nor implicitly did so. Nevertheless, the trial court found it premature to quash Count II of the indictment and, instead, ordered the State to amend the indictment to cure the defect.

The trial court otherwise denied the motion to quash and denied relief in the habeas action. As to the various as-applied claims, the trial court held that state law does not permit them to be raised pretrial. Regarding the facial challenge to Count II, the trial court held that neither of the statutes under which Governor Perry is being prosecuted is facially unconstitutional.

Responding to the trial court's suggestion that more specificity be pled in Count I and the trial court's order that the State amend Count II, the State filed a document titled "Bill of Particulars & Amendment of Indictment."¹¹ The bill of particulars identifies Governor Perry's veto of the funds for the Public Integrity Unit as the act of misuse in Count I.¹² In its amendment of Count II, the State struck the language found by the trial court to be inadequate to negate the exception and substituted the following language:

... and it is further alleged that Rosemary Lehmberg was an elected district attorney in the Judicial Department (or Branch) of Texas, specifically, the District Attorney of Travis County, Texas, and the defendant was the chief officer of the Executive Department (or Branch) of Texas, specifically, the Governor of the State of Texas, and the defendant was therefore not a member of the governing body of a governmental entity in which Rosemary Lehmberg was a member, and the defendant's influence and attempt to influence Rosemary Lehmberg by means of an unlawful threat to veto legislatively-approved appropriation of funds did not constitute an official action taken by the defendant as a member of a governing body.

In written objections, Governor Perry argued that a bill of particulars is not recognized in Texas law. "It gives the appearance of notice to Governor Perry, while leaving the State free to shift strategies at trial if needed."¹³ He also raised a number of objections to the State's amendment of Count II.

B. Appeal

Governor Perry filed an appeal in the court of appeals, claiming that the trial court erred in denying relief on the habeas application. The court of appeals recognized that at least some as-applied challenges can be addressed pretrial....